Euro Africa Kalengwa Mine Limited has lost a bid to join a case for Kalengwa Processing Zone Limited over a contentious mine permit.
This is a case in which Kalengwa Processing Zone Limited sought leave to commence a judicial review of the Mining Licensing Committee’s decision to terminate its Large Scale Exploration License no. 24401-HQ-LEL.
He was seeking a statement that the committee’s decision to terminate his license and reinstate license no. 8584-HQ-LEL was illegal and procedurally irregular.
Kalengwa Processing Zone Limited had applied for leave to commence judicial review and was granted ex parte on September 6, 2021.
Euro Africa Kalengwa mine was then added to the case as an interested party by an ex parte order dated October 21, 2021 and it then asked the court to set aside leave for judicial review.
Before the motion could be heard, Kalengwa Processing filed a disclaimer of Euro Africa Kalengwa Mine’s joinder order.
Kalengwa Processing argued that the ex parte order of joinder obtained by Euro Africa Kalengwa Mine was made improperly, in bad faith and with a misrepresentation of material facts.
She clarified that Euro Africa, being a company with a distinct interest to protect, had no interest in being joined in the proceedings relating to the decision of the Mining Permits Committee.
Kalengwa Processing said Euro Africa could not be said to have any legal right or equitable right relating to its exploration license No. 24401-HQ-LEL.
But Euro Africa Kalengwa Mine manager Davis Mwanamoya argued that the Kalengwa processing area had woefully failed to realize that the case was prematurely in court as it had gone to court for redress. which included a suspension of the decision of the licensing committee pending appeal to the Minister, an extraterrestrial procedure.
Mwanamoya argued that a party interested in a case or likely to be affected by a court decision has the right to be heard.
“In the skeletal arguments, it was argued that the interested party (Euro Africa Kalengwa Mine) is the holder of Large Scale Exploration License 8584-HQ-LEL. The reinstatement of the said mining permit is the bone of contention in the application for judicial review and under which the person concerned requested to join the proceedings,” reads the judgment. “It was further argued that it is rather dishonest for the Applicant (Kalengwa Processing) to claim that the Interested Party has a distinct interest to protect when it was aware that the Interested Party is the owner of the mining permit which the applicant seeks in effect to have canceled and furthermore that the interested party already has an injunction against the applicant on the same area which the applicant seeks to circumvent by virtue of this procedure.
In her ruling, Judge Mwaka Mikalile quashed the ex parte order to join Euro Africa for irregularity.
She said she understood why Kalengwa Processing made the request.
She noted that the Euro Africa Membership Order was granted ex parte with no accompanying date for the inter partes hearing.
“It is therefore only fair that the claim be considered although it was made under an unenforceable provision. After all, I am here called upon to determine the merits of the ex parte order,” she said.
Judge Mikalile noted that Euro Africa was joined to the proceedings under Order 53 rule 9(1).
She said the provision allowed the court to hear an appropriate person who wished to be heard in opposition to the application for judicial review.
Judge Mikalile said the provision does not authorize the court to issue a non-join order as was done in the case.
“In any event, as the applicant rightly argued, the proceedings to which the interested party was joined contest the decision of July 26, 2021 of the Mining Permits Commission to terminate the applicant’s permit”, said said Judge Mikalile. “It is the defendant’s decision regarding the plaintiff’s mineral rights that is called into question. We therefore tend to agree with the applicant on the fact that the person concerned has no clear interest in the matter. The person concerned was after all not a party to the taking of the decision/action in question.
Judge Mikalile noted that Euro Africa had tried hard to justify its presence, but she agreed with the argument that in its attempt to do so it had introduced extraneous matters which do not relate to the committee’s decision.
She said judicial review was between the decision maker and the person affected by the decision maker’s decision.
Judge Mukalile said she agreed with the argument that a party could not be added to a proceeding on the sole ground that that party was likely to be affected by a court decision.
She said Order 53/14/24 referred to by Euro Africa to support her argument that she had a sufficient interest in the matter was unnecessary.
“This provision concerns a person wishing to initiate judicial review proceedings. It is the plaintiff who seeks judicial review who must convince the court of his interest in the case to which the petition relates. The provision has nothing to do with the person seeking to join the proceedings as it does with the interested party,” Judge Mikalile said. “It is quite obvious that the main interest of the person concerned here is to ensure that this matter does not go any further.”
Judge Mikalike declared that Euro Africa’s request was not admissible because even if she determined that he was a person fit to be heard, she could only present arguments at the hearing of the request on the merits.
“He cannot be heard at the leave stage,” Judge Mikalile said.
She said the order of joining Euro Africa was irregular and agreed with Kalengwa Processing that the former did not have sufficient interest in the matter.
“Having found that the carpenter’s ex parte order was improper, I hereby set it aside as requested with costs. Accordingly, the application to set aside the leave order is without merit,” said Judge Mikalile.